CHAPTER
FIVE
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CHAPTER FIVE
RESTITUTIVE JUSTICE TO VICTIMS
Restitutive justice should be principle objective of the criminal law, requiring the
offender to repay the victim from his own resources or from wages to be earned
by the offender in the prison. Restitution is viewed as the best way to the
offender to realize the harm he has done and to accept genuinely his
responsibility by repairing it, while also offering greater promises of
rehabilitation than fine or imprisonment. For offenders , who can safely be
released, a restitutive theory offers an alternative to imprisonment by providing
emotional and economical satisfaction to the victims, vicarious satisfaction to the
family and friends and some degree of deterrence to the offender1 2.The
Rehabilitative value of restitution is recognized by the judges who impose
restitution because of its impact on the offender and its promotion on
correctional aims by legislature that authorize restitution as a criminal sanction;
and by community service programmes that use restitution as a rehabilitative
tool.
I. Restitution: Restitution can be defined as a sanction imposed by the court on
a person convicted of a crime which requires the convicted person to make a
monetary payment to the victims or some times, to donate his labour for the
benefit of the community. The word reparation, restitution and compensation is
often used by writers interchangeably, in criminal victim relationship, though
they represent different view points. All of them allude procedures for restoring
victims to his pre crime conditions. Reparation is obtained from the offender by
the victims of crime Restitution is concerned with the reparation of the victims
1 Bharat Bhushan Dass-Restitutive justice
2 New York State compensation Board . The victim and criminal justice system-A report to the
government and the legislature on the State of Rights, Needs and interest of crime; 53 (1982) PP
14-15
95
loss or better restoration of his position and the rights that are damaged or
destroyed by the offender . It is an indication of responsibility of the offender .It
is penal in character and thus represent a correctional goal in criminal case.
Compensation is concerned with the counter balancing of the victims loss that
result from criminal act. It means making amend the harm caused to the victim .
It indicates the responsibility of the State and claims State responsibility3.
Restitution serves the retributive goals of punishment. It is constructed to fit the
crime and to emphasize the wrongfulness of the offence and defendant’s moral
responsibility . In practice as well as in theory, restitution orders unlike damage
awards are specifically geared towards achieving the objectives of the Criminal
Justice System. When determining the amount specified in a restitution order,
most court consider not only the amount of the victim loss, but also the
rehabilitative, deterrent and retributive effects of the order.
II. Emerging Trends & Legislative Paradigms
The Law commission of India in its hitherto submitted Reports on the Indian
Penal Code, 1860 (IPC) and the Code of Criminal Procedure, 1898 and of 1973
has delved into justice to victims of crime and has also suggested some proposals
for reform. Similarly, in 1996, the National Law School of India University,
Bangalore (NLSIU) prepared a Draft Bill ‘the Victim (Criminal Injuries) Right
to Assistance Bill, 1996’ (hereinafter NLSIU Bill)., Recently, in March, 2003,
the Malimath Committee, in its Report on Reforms on the Criminal Justice
System in India, has, among other things, also delved into ‘justice to victims’,
and urged the legislature to enact an appropriate law on the subject to enhance
credibility of the CJS in India. A careful reading of these Reports of the Law
Commission and of the Malimath Committee, and the NLSIU Bill, however,
discloses different ‘trends’ in, ‘approaches’ to, and ‘legislative models’ are
outlined here below with their respective contributions and limitations, if any.
3 Stephen Schafer, Supra page 11 f.n.2P.
96
A) Compensation as an ‘additional punishment’ under the IPC?
The Fifth Law Commission, in its 42nd Report on the IPC, delved into
compensation to victims of crime in India. While doing so, it referred to and
highlighted the ‘three patterns’ of compensating victims of crime reflected in the
Codes of Criminal Procedure of France, Germany and (the erstwhile) Russia.
The ‘three patterns’ are; (i) compensation by the State, (ii) compensation by an
offender either by asking him to pay it from the fine imposed or a specified
amount, and (iii) duty to repair the damage done by the offence. In France, a
crime victim’s claim for compensation (action civil) can be combined with
criminal proceedings against the offender. While under the German Code of
Criminal Procedure an ‘injured person’ (or his heir) may, in the criminal
proceedings, assert against the accused his claim ‘involving property rights
arising out of the offence’. The German Criminal Procedure Code, to facilitate
the filing of such claim, further provides that an injured party should be
‘notified’ of the filing of criminal proceedings against an accused. A victim of
crime (or his representative) is also entitled to ‘participate’ in the criminal trial.
The (then) Criminal Code of Russia imposes a ‘duty’ on the offender ‘to make
amends for the harm caused’. Execution of this duty consists in (i) direct
elimination, by one’s own resources, of the harm caused, or (ii) compensation,
with one’s own means, for material loss, or (iii) a public apology.
The Law Commission, however, felt that the ‘elaborate procedure’ provided
under the French and German Codes would be ‘unsuitable’ in our (Indian) courts
and the creation of a legal right in favour of a victim of crime to join criminal
proceedings as a third party (in India) would be ‘unwise’. It also ‘failed’ to see
any ‘great advantage’ in providing (in India) for ‘duty to make amend for the
harm caused’ or ‘payment of compensation’ to them as an additional punishme4.
4 Law Commission of India, 42nd report: IPC, (Govt, of India, New Delhi, 1971), at PG 52.
97
The Commission, accordingly, favoured the payment of compensation {provided
under Section 545 of the then prevailing Cr.P.C. of 1898 now Section 357 of the
new Cr. P.C. of 1973) to crime victims out of fines imposed on offenders. With
a view to giving prominence in the IPC to the payment of compensation out of
fine imposed and to conferring substantive powers on trial courts to this effect,
if, nevertheless, recommended that a provision5 enabling a criminal court to
direct that the whole or any part of the fine realized from the offender be paid by
way of compensation to the victim of crime be inserted in the IPC. However,
Justice R.L. Narasimham, a member of the said Commission, doubting the
efficacy of the compensatory scheme provided under the (1898) Cr. P.C. and the
circuitous procedure involved in the realization of fine and the payment of
compensation to victims of crime, mooted for the need to impose a statutory
‘duty’ on offenders, as an additional punishment, to amend the harm caused by
them.
These two proposals for reforms recommending improvements in the substantive
criminal law for the payment of compensation by the offender for ‘injury caused’
or Toss’ suffered by his victim, in essence, reveal two approaches to
compensating victims of crime. The first pleads for compensation by a convict
out of the fine imposed upon him for committing an offence against the human
body, property, defamation, or abetment of, or criminal conspiracy to, commit
these offence(s), provided such compensation is recoverable in a civil suit
against the convict for loss or injury caused to the person. The second, on the
other hand, favours compensation to crime victims as an additional punishment
and pleads for imposition of a statutory duty on offenders to compensate,
monetarily or otherwise, victims of their crimes. It is unequivocally clear that
5 The substantive clause recommended read- “62. Order to pay compensation out of fine to
victim of offence-when ever a person is convicted of an offence punishable under Ch.-16,17 or
21 of this Code or of an abatement of such offence and is sentenced to fine and court is of
opinion that compensation is recoverable by civil suit.
98
the second approach, which not only shows equal concern to victims of crime
but also visualizes real reparation of victims of crime, sounds more convincing
and appealing.
However, in 1997, the Fourteenth Law Commission, in its 156th Report on the
IPC, recalling its earlier recommendation made in 1996 in its 154th Report on the
Cr.P.C. for framing a ‘Victim Compensation Scheme’ by State Governments and
realizing that the payment of compensation as an ‘additional punishment’ not
only requires an inquiry into a variety of circumstances but also a few cases may
not warrant compensation by way of punishment, opined that it would be ‘not
appropriate’ to include order of payment of compensation in Section 53 of the
IPC by way of punishment .
(B) Comprehensive Statutory & State Obligatory Compensatory Scheme
The Fourteenth Law Commission, when the Criminal Procedure Code
(Amendment) Bill, 1994 was introduced in the Rajya Sabha and when it was
pending before the Parliamentary Committee, was requested by the Central
Government to undertake a comprehensive review of the Cr.P.C. of 1973 and to
make suitable proposals for reform.
The Law Commission, among other things, identified ‘victimology and
compensating victims’ for its deliberation6
7. Exhibiting its sincere concern for
victims of crime and justifying the need to ‘redesign and restructure’ the victim-
compensatory legislative paradigm in India, it observed.
“Increasingly the attention of criminologists, penologists and reformers of
criminal justice system has been directing to victimology, control of
6 Law Commission of India, 156th report on the IPC, 1997, para 2.16.
7 Chapter-XV: Victimology.
99
victimization and protection of victims of crime. Crimes often entail substantive
harm to people and not merely symbolic harm to the social order. Consequently,
the needs and rights of victims of crime should receive priority attention in the
total response to crime. One recognized method of protection of victim is
compensation to victims of crime.”
Referring to the payment of compensation under the provisions of Section357 of
the Cr.P.C. and expressing its reservations about the efficacy of the statutory
provisions and recalling its meager use by courts in India, the Law Commission
asserted that the principles of compensation to victims of crime need to be
reviewed and expanded to cover all cases. Compensation should not be limited
only to fines, penalties and forfeitures realized by the State, it asserted, should
also render its assistance to victims of crimes out of its own funds in all cases
regardless of the fact whether an accused is acquitted or the perpetrator is not
traced {but the victim is identified) or when the offence is proved. The State’s
responsibility to make reparation to crime victims can be justified on
humanitarian, compassionate, and legal grounds. The State is also under a sort
of legal obligation to compensate victims of crime, who suffered because of
failure on the part of the state to; maintain law and order; ensure peace, harmony
and tranquility in society; protect people and their property; and use its authority
to suppress crime and punish offenders. Compensation from the State can also
be justified on the ground that the state system, namely, its political, economic
and social institutions, generates crime by poverty, discrimination,
unemployment and insecurity.
A victim of such a system, therefore, deserves compensation from the State. In
this perspective the Law Commission, for the first time, traced the ‘constitutional
underpinnings for victimology’ in India. Fundamental Rights (Part III) and
Directive Principles of State Policy (Part IV), according to the Commission,
form the bulwark for a new social order in which social, economic and political
justice form the national life of the country. Article 41 of the Constitution,
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which mandates, inter alia, that the State shall make effective provisions for
‘securing the right to public assistance in cases of disablement and in other cases
of undeserved want’ and Article 51-A, which imposes a fundamental duty on
every citizen, inter alia, to have compassion for living creatures’ and ‘to develop
humanism’, can, if emphatically interpreted and imaginatively expanded, form
the constitutional underpinnings for victimology .
In pursuance of its above outlined concern for victims of crime and the
constitutional foundation of victimology in India the Law Commission felt that
the victim-compensatory paradigm reflected in Section 357 of the Cr.P.C. of
1973 is inadequate. Echoing its earlier recommendation made in its 152nd Report
on custodial crimes and influenced by the Tamil Nadu ‘model’ of compensating
victims of crime through a well-designed ‘Victim Assistance Fund’ the
Commission recommended a comprehensive victim compensation scheme to be
administered, on the recommendations of a trial court, by the Legal Services
Authorities constituted at the District and State levels under the Legal Services
Authorities Act, 1987. The suggested clause recommending the payment of
compensation to victims of custodial crimes, inter alia , mandates a criminal
court to award, notwithstanding provisions of Section 357, Cr.P.C. ,
compensation of not less than Rs.25,000 and Rs. 1,00,000 respectively to the
persons who sustain ‘bodily injury not resulting in death’ and victims of
‘custodial death’. It also mandates the court to order the Government concerned,
jointly and severally with the convicted public servant, to pay, as compensation,
the amount specified in the order.
Inspired by the Tamil Nadu model and commanded by its zeal and deep concern
for victims of crime, the Law Commission also recommends that every State
8 See. Delhi Domestic Working Women’s Forum Vs. Union of India, (1995)1 SCC 14 and
Bodhisattwa Gautam Vs. Subhra, (1996) 1 SCC 490. For comments see, K.L. Vibhute: “Victims
of rape and their right to live with Human Dignity and to be compensated: Legislative Judicial
Responses in India”.
101
Government, through a statutory provision to be inserted in the Cr.P.C., be put
under a legal obligation to formulate, in co-ordination with the Central
Government, a scheme for providing funds for the purpose of compensating
victims of crime (or their dependents) who have suffered loss or injury as a result
of the crime and who require rehabilitation.
Such a scheme be, on recommendations of a trial court, administered by the
Legal Services Authorities constituted at the District and State levels under the
Legal Services Authorities Act, 1987. Under the scheme the State Legal
Services Authority and the District Legal Services Authority be authorized
respectively to quantify and award compensation, on a recommendation of a trial
court, to victims of crime. However, the Law Commission desires that these
Authorities should have special considerations while compensating victims of
custodial crimes, rape, and child abuse; and physically and mentally disabled
victims of crimes. The Commission, for the first time, also proposes that a trial
court be also empowered to, in appropriate cases, recommend to the District
Legal Services Authority (if the compensation in its view is less than Rs.30,000)
or to the State Legal Service Authority (if the compensation is more than
Rs.30,000) for further rehabilitation of victims of crime. It is further proposes
that a crime victim be enabled to approach the District Legal Services Authority
and the State Legal Services Authority, as the case may be, for seeking
compensation even if the offender is not traced or identified, but the victim is
identified, or no trial has taken place.
(C) Victims (Criminal Injuries) Right to Assistance Bill, 1996-NLSUI Bill.
The NLSIU Bill, in consonance with its proposed compensatory scheme for
crime victims and its operation, recommends a few minor amendments to clause
(b) and (c) of Section 357(1); redrafts Section 357(3) of the Cr.P.C., and suggests
the addition of sub-section (3-A) in the Cr. P.C. The recommended redrafted
sub-section (3) read as under:-
102 '
“357(3). When a Court imposes a sentence, of which fine does not form a
part, the Court may, when passing judgment, order the accused person to
pay, by way of compensation, such amount as may be specified in the order
to any person, if it is of the opinion that such person has suffered any loss or
injury by reason of the act for which the accused person has been so
sentenced”.
While the suggested sub section (3-A) of Section 357, Cr.P.C., reads;
“357(3-A). Where an order for compensation has been made under this
Section, the Court may direct the whole or any part of the compensation to
be paid to any Crime Victim Assistance Authority established under the
Victims (Criminal Injuries) Right to Assistance Act, 1996”
(D).Malimath Committee Report-Victim Participation:
The Malimath Committee, interestingly, without making any serious attempts to
re-look at the structural or operational aspects of the victim-compensatory
legislative frame work designed under the Cr.P.C., devoted a considerable space
to ‘Justice to Victims’ in its report9. Very early in the deliberations of the
Committee, it was recognised that’, the Committee says, ‘victims at present do
not get the legal rights and protection they deserve to play their just role in
criminal proceedings. ‘In every interaction the Committee had with the Police,
the Judges, the Prosecution and defence lawyers, jail officials and the general
public, this concern of victims was pronounced and a view was canvassed that
unless justice to victims is positioned as one of the focal points of criminal
proceedings’, the Malimath Committee further said, ‘the system is unlikely to
restore the balance as fair procedure in the pursuit of truth. Referring to Section
357 of the Cr.P.C., the Committee observed:
“Not only was the victim’s right to compensation ignored except a token
provision under the Criminal Procedure Code but also the right to participate
9 See Government of India, Committee on Reforms of Criminal Justice System, supra n. 10 PP.
75-84.
103
as the dominant stakeholder in criminal proceedings was taken away from him.
The principle of compensating victims of crime has for long been recognized
by the law though it is recognized more as a token relief rather than part of a
punishment or substantial remedy”.
In the backdrop of the constitutional spirit displayed by the Apex Court in its
celebrated judicial pronouncements10 for protecting the basic rights of, and
ensuring justice to, victims of crime, the Committee emphasized the need to have
a comprehensive victim-compensatory scheme modeled on the Victim
Compensation Bill, 1995 prepared by the Indian Society of Victimology and
submitted to the Government of India. However, the Committee, for undisclosed
reasons, neither sketched in the Report the 1995 Bill nor outlined the scheme
designed there under for compensating victims of crime. Curiously, the 1995
Bill is also not included in the “Appendices’ of the Report (Vol.2). It, therefore,
becomes difficult, at least for the present researcher, to appreciate
recommendations of the Malimath Committee in the light and background of the
hitherto proposed different victim-compensatory ‘models’ proposed by the Law
Commission and the NLSUI. For the same reasons, it also becomes difficult to
perceive and assess positive dimensions, if any, of the recommended
compensatory design.
Further, the Malimath Committee curiously has not referred to either of the
hitherto recommended victim-compensatory ‘models’. It is, therefore, obviously
difficult for the present writer to appreciate either the ‘response’ or the
‘approach’ of the Malimath Committee to these ‘victim compensatory models’.
One may convincingly argue that either the Malimath Committee did not think it
‘worth’ even to peep into those models as, probably, it did not find any novelty
in them (compensatory models) or in its pursuit for truth in criminal courts, it did
not allow itself to be prejudiced by looking into those proposed ‘trends and
10 Nilabati Behera Vs. State of Orissa, (1993)2 SCC 746 and Chairman, Railway Board Vs.
Chandrima Dass, (2000)2 SCC 465.
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legislative paradigms’ while designing a ‘model’ for rendering ‘justice to
victims’. One might, by taking the risk of being unreasonably bold and unfair to
the Committee, accuse the Committee of being totally ignorant of the hitherto
victim-compensatory ‘models’. Whatever may be the line of argument one
wants to advance, the fact remains that it is difficult to know reasons, if at all
any, for the Committee’s inclination to the victim-compensatory legislative
paradigm designed in the 1995 Bill.
Nevertheless, a perusal of ‘recommendations’ of the Malimath Committee
reveals that it, like the Law Commission, strongly feels that compensating
victims of crime is a State obligation, whether the offender is apprehended or
not, convicted or acquitted. And accordingly it proposes a ‘victim compensation
law’ that provides for: (i) the creation of a ‘Victim Compensation Fund’ to be
possibly administered by the Legal Services Authorities created under the Legal
Services Authority Act, 1987, (ii) the scale of compensation in different offences
for the guidance of the court, and (iii) the categories of offences in which
compensation can not be granted as well as the conditions under which it can be
awarded or withdrawn. A ‘Victim Compensation Fund’, according to the
Committee, as suggested by the Law Commission, be generated by pulling
together ‘fines’ recovered, ‘funds’ generated by the criminal justice system and
solicited ‘public contributions’. Even if part of the assets confiscated and
forfeited in organized crime and financial frauds, the Committee feels, is made
part of the fund and if it is managed efficiently, there will be no paucity of
resources for compensating victims of crime. In any case, dispensing justice to
victims of crime, the Committee asserts, can no longer be ignored on grounds of
scarcity of resources.
The merit of the Malimath Committee lies in the fact that it, for the first time,
delved into the ‘participation’ of victims in criminal processes as an inseparable
component of justice to victims and suggested a set of recommendations for their
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effective participation. The CJS in India, the Committee feels, and rightly so,
exhibits its utter insensitivity to victims of crime by denying them the right to
participate, except as witnesses, in criminal proceedings and by not giving them
an opportunity to assist criminal courts by adducing evidence or putting
questions to witnesses. Drawing support and inspiration from the French victim-
participatory criminal justice system, the Committee observed:
“His (victim’s) active participation during trial will be of great help in the search
for truth without inconveniencing the Prosecution. He can supplement the
evidence adduced by the Prosecution and put forth his own arguments. He will
be of help to the court in the matter of deciding the grant or cancellation of trial.
He will adduce evidence in the matter of loss, pain and suffering to decide on
his entitlement of interim relief and compensation by way of restitution.
Wrongful attempts to withdraw or close the prosecution due to extraneous
factors can be resisted if the court were to have the continued assistance of then
victim. For all these reasons and more, it is clear that if the criminal
proceedings have to be fair to both the parties and if the court were to be
properly assisted in its search for truth, the law has to recognize the right of
victim’s participation in investigation, prosecution and trial”.
A. To produce evidence, oral or documentary, with leave of the Court and/or to
seek directions for production of such evidence.
B. To put questions to witnesses or to suggest to the court questions which may
be put to witnesses?
C. To know the status of investigation and to move the court to issue directions
for further investigation on certain matters or to a supervisory officer to
ensure effective and proper investigation to assist in the search for truth,
D. To be heard in respect of the grant or cancellation of bail.
E. To be heard whenever prosecution seeks to withdraw and to offer to
continue the prosecution.
106 ,
F. To advance arguments after the prosecutor has submitted arguments.
G. To participate in negotiations leading to settlement of compoundable
offences, and
H. To prefer an appeal against any adverse order passed by a court acquitting
the accused, convicting for a lesser offence, imposing inadequate sentence, or
granting inadequate compensation;
Malimath Panel Recommendations
In the above context, the Malimath Committee appointed by the Government of
India (2003) made a series of recommendations to put the victim back at the
centre of criminal proceedings through a series of steps designed to empower
him and the court. These include:
(i) The victim, and if he is dead, his legal representative shall have the right to be
impleaded as a party in every criminal proceeding where the offence is
punishable with seven years imprisonment or more. In select cases to be notified
by Government, this right may even be extended to recognized voluntary
organizations as well,
(ii) The victim has a right to be represented by an advocate of his choice; an
advocate shall be provided at the cost of the state if the victim is not in a position
to afford a lawyer.
(iii) The victim's right to participate in criminal trial shall, inter alia, include the
right to provide evidence, to put questions to witnesses with the leave of the
court, to be informed of the status of investigation, to move court to ensure
proper investigation, to be heard on issues relating to bail and withdrawal of
prosecution, to advance argument after the prosecutor has submitted his
arguments, and to participate in settlements of compoundable offences.
107
(iv) The victim shall have a right to prefer an appeal against any adverse order
passed by the court acquitting the accused, convicting for a lesser offence,
imposing inadequate sentence, or granting inadequate compensation.
(v) Legal services could include psychiatric and medical help, interim
compensation, and protection against secondary victimization.
(vi) The victim compensation law is to be made by Parliament, which will
provide for the creation of a victim compensation fund to be administered
possibly by the Legal Services Authority. The law should provide for the scale of
compensation in different offences for the guidance of the court.
Criminal justice administration will assume a new direction towards better and
quicker justice once the rights of victims are recognized by law and restitution
for loss of life, limb, and property are provided for in the system. The cost for
providing it is not exorbitant as sometimes made out to be. In any case,
dispensing justice to victims of crime cannot any longer be ignored on grounds
of scarcity of resources.
III. Rationale of Restitution and Compensation.
Criminal Justice administration will assume a new direction towards better and
quicker justice once the rights of victims are recognized by law and restitution
for loss of life, limb and property are provided for in the system. The victim
compensation law is to be made by parliament, which will provide for the
creation of a victim compensation fund to be administered possibly by the Legal
Services Authority. The law should provide for the scale of compensation in
different offences for the guidance of the court. Restitution is one of the forms
of compensation for losses/injuries suffered by the victim. In recent years, the
plight of victims has attracted adequate attention with the result that new
dimensions have been added to the criminological thoughts not only at national
but also at the international level with the following rationale:
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(i) : It would be the responsibility of the State to protect its citizens failing which
it shall compensate the victims of crime to prevent individual retaliatory
behaviour and to reinforce law abiding conduct.
(ii) :In principle, offender must accept the responsibility for the consequence of
his wrong doings in conformity with social justice.
(iii) :Awarding compensation to the victims by the offender is a part of the
punishment that may also have an educational value for the offenders which
is therapeutically more beneficial to them.
(iv) :The provision of compensation has a practical value in the treatment and
rehabilitation process of the offender which facilitate the process of
correction in our system of dispensing justice. This kind of punishment can
make compensation to the victims as integral part of probation and parole
conditions for the offenders.
(v) :It is the responsibility of the State to help the needy and distressed persons in
a welfare state and in pursuance to that the state should come to their help at
the time of their criminal victimization at the hands of perpetrators of crime.
IV. Victim's Rights And Criminal Justice Reforms
Among the many proposals on the table for reforming criminal justice, the one
that attracts universal acclaim relates to the status and role of the victim in
criminal proceedings. Today he or she is an informant and possibly a witness for
the prosecution depending upon the good sense of the police and the discretion
of the public prosecutor. Unlike the accused, the victim has no rights to protect
his or her interests in the proceedings, which are supposedly conducted on his or
her behalf by the state and its agencies. And when the state agencies fail to do
their duty, as has often happened in many cases in the recent past, the victim is
left to suffer injustice silently or to take the law into his or her hands and wreak
vengeance on the offender.
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What can be done to give a better deal to the victims of crime to make the
proceedings equally fair to both sides?
In 1985, the United Nations adopted the Declaration of Basic Principles of
Justice for Victims of Crime and Abuse of Power. The Declaration recognized
four types of rights and entitlements of victims of crime. They are:
(a) Access to justice and fair treatment — which includes prompt redress, right
to be informed of benefits and entitlements under law, right to necessary support
services throughout the proceedings, and right to protection of privacy and
safety.
(b) Right to restitution — return of property lost or payment for any harm or loss
suffered as a result of the crime.
(c) Compensation — when compensation is not fully available from the offender
or other sources, the State should provide it at least in violent crimes that result
in serious bodily injury, for which a national fund should be established.
(d) Personal assistance and support services — includes material, medical,
psychological, and social assistance through governmental, voluntary, and
community-based mechanisms.
The United Kingdom enacted the Criminal Injuries Compensation Act in 1995.
In 2001 in a report on "Criminal Justice: The Way Ahead," the Home
Department found "that many victims felt that the rights of the accused of a
crime take precedence over theirs in criminal proceedings." Every time a case is
discharged or acquitted or the verdict is perceived to be unjust, a victim's
suffering is made worse. During the long proceeding of investigation and trial,
victims are not kept properly informed or provided with a sense of security. Too
often they are expected to turn up at court for cases that are then adjourned, or
are subjected to unnecessarily stressful courtroom experiences.
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Crime can leave victims physically injured, emotionally traumatized, with
potentially long lasting psychological trauma, all of which can be compounded
by severe financial difficulties, observed the U.K. report. The agencies with
which victims come into contact, particularly during the period after the crime,
do not always understand and respond effectively to their needs. The U.K.
report, therefore, recommended the following measures to balance the system of
justice in that country:
(a) Legislate to entitle victims with information about release and management
of the offenders, and progress of their cases.
(b) Enable victims to submit a "victim personal statement" to the courts setting
out the effect of the crime on their lives.
(c) Introduce measures to protect vulnerable7 victims/witnesses such as screens,
video evidence, etc.
(d) Establish a victim's commissioner (ombudsman).
(e) Legislate to produce a Victim's Code of Practice setting out what protection,
practical support and information, victims have a right to expect from criminal
justice agencies.
In France all those who suffer injuries on account of crime are entitled to become
parties to the proceedings from the investigation stage itself. They can assist
investigation to proceed on proper lines and move the Court for appropriate
directions when the investigation gets delayed or distorted for whatever reasons.
They may suggest questions to the Court to be put to witnesses produced in
Court. They may conduct the proceedings if the Public Prosecutor does not show
due diligence. They can supplement the evidence adduced by the Prosecution
and put forth their own arguments. They will help the Court in the matter of
deciding the grant or cancellation of bail. They will adduce evidence in the
matter of loss, pain, and suffering to decide on their entitlement of interim relief
and compensation by way of restitution. Wrongful attempts to withdraw or close
the prosecution due to extraneous factors can be resisted.
The status of victim in criminal proceedings in India is dealt with in a few
provisions of the Criminal Procedure Code, which are too insufficient to be
considered fair in dispensing equal justice under law (Article 14).
If the victim of a cognizable offence gives information to the police, the police
are required to reduce the information into writing and read it out to the
informant. The informant is required to sign it and receive a copy of the FIR
(Section 154 (1) and (2) of the Cr.P.C.). If the police refuse to record the
information, the victim-informant is allowed to send it in writing and by post to
the Superintendent of Police concerned (Section 154(3)). If the police refuse to
investigate the case for whatever reason, the police officer is required to notify
the informant of that fact (Section 157(2)). Alternatively, victims are enabled by
section 190 of the Cr. P.C. to avoid going to the police for redress and directly
approach the Magistrate with their complaint.
The complaints of victims are many. That they are ill treated or harassed. That
the police do not truthfully record the information. Investigation being
exclusively a police function, victims have a role in it only if the police consider
it necessary. There is no special provision for support to victims of rape to enable
them to overcome the trauma and hurt.
In the granting and cancellation of bail, victims have substantial interests though
not fully recognized by law. Section 439 (2) allows a victim to move the Court
for cancellation of bail; but the action thereon depends on the stand taken by the
Prosecution. Similarly, the prosecution can seek withdrawal at any time during
trial without consulting the victim (Section 321 Cr. P.C.). Of course, the victim
may proceed to prosecute the case as a private complainant. However, the victim
cannot challenge the prosecution decision to withdraw at the trial stage itself.
The compensation provision is of little value. Section 357 says when the
sentence of fine is imposed as the sole punishment or any additional punishment,
the whole or part of it may be directed to be paid to the victim as per the
discretion of the Court. Section 357 (3) makes provision for compensation even
if a fine does not form part of the punishment. There is no question of
compensation if there is acquittal or where the offender could not be
apprehended.
In 1992, the Uttar Pradesh Government through an amendment to Section 357
provided that where the victim belongs to a Scheduled Caste or Scheduled Tribe
and the person convicted is not of that category, the Court is obliged to order
compensation to the victim11.
Of course, compensation is sometimes ordered to be paid by the state for illegal
detention, custodial torture etc. by the constitutional court under writ jurisdiction.
11 N.R. Madhava Menon (Director, National Judicial Academy, Bhopal.)
